COAL OPERATORS CAS. CO. v. UNITED STATES

August 14, 1947

COAL OPERATORS CASUALTY CO.
v.
UNITED STATES et al.

The opinion of the court was delivered by: KIRKPATRICK

Nehemiah Williams, an employee of South Philadelphia Boiler Cleaning Company, an independent subcontractor, was injured while engaged in painting the steamship American Fisher. This suit in Admiralty was brought by his employer's compensation insurance carrier against the respondents as owners, asserting third party liability for negligence causing or contributing to the injury.

Findings of Fact.

1. On October 12, 1944, Williams, one of four men of the Boiler Company working on a float alongside the American Fisher, then undergoing repairs in the port of Philadelphia, was engaged in spraying the hull with paint. Several other employees of the Boiler Company were on the deck of the ship and, under the direction of the foreman, were handling the lines by which the float was moved along the side as the painting progressed. In the course of the work, the float had been moved by progressive stages toward the stern of the vessel until it reached a point where part of it at least was directly underneath the overboard discharge orifice of the salt water circulating system of the ship. It remained there for about seven minutes while the foreman refilled the paint pot, which was coming from the discharge. Williams had just resumed spraying the hull and had painted around the discharge when a stream of scalding hot water and steam was discharged with great force from the hole, injuring him severely. The accident occurred at 11:25 A.M.

2. The discharge of hot water was caused by the temporary clogging of the intake of the circulating system by floating debris.

3. Clogging of the intake is an unusual occurrence, but when a ship is in a harbor where the water is full of debris, as it was in this case, it is not so extraordinary that it is not to be anticipated by experienced ship's officers.

4. The temporary stoppage of circulation of water in the condenser was not due to any defect or deficiency in the circulating system.

5. A short time before the accident a deck officer asked Ambruso, the painter foreman on the deck, how soon he expected to have the paint job finished. Ambruso replied that he had only three more 'moves' to make and that he would be finished by noon. The two men looked over the side of the ship and could see that the float was ready to be moved and that in the course of its progress toward the stern it would have to come opposite the overboard discharge. Ambruso knew which of the openings on the ship side was the overboard discharge. There was no further communication between him and the ship's officers until the accident happened.

Comment: 'A short time' should perhaps be stated more precisely, and I will try to do so, but it is not easy to say exactly how long before the accident this conversation took place. Assuming that Williams fixed the time for the accident (11:25 A.M.) correctly, it is hardly possible that the time which Ambruso gave for the conversation, 10:30 A.M., can also be right. Ambruso said, 'I says I would be done before dinner time * * * and then the accident happened.' He also said that he talked to the officer 'just before the accident.' Williams testified that 'We were ready to leave the flat side of the ship. We got almost to the stern, where the ship would curve in, going down toward the propeller, like' at the time of the accident, and that they were about halfway down the off-side of the vessel. Inasmuch as it would require three moves to finish the painting, this would indicate that it was during the first stop which the float made after the officer spoke to Ambruso that the accident occurred. The float had been stationary at the point of the accident for about seven minutes. Consequently it would seem that Ambruso's conversation with the deck officer could hardly have been more than 15 or 20 minutes before the accident.

6. The deck officer to whom Amburso spoke should have been aware of the danger to men working under the overboard discharge of his ship, and knowing that the work to be done would necessitate the float being soon placed in the immediate vicinity of the overboard discharge, reasonable care required him to take steps to cut off or stop the operation of the circulating system while the work was being done.

7. Williams did not know which of the openings in the side of the ship was the overboard discharge from the engine room and did not know that he was placing himself in a dangerous position at the time of the accident.

Comment: For at least seven minutes no water had been coming out of the discharge pipe. Undoubtedly water had been coming from it earlier, but the exact time when the flow stopped or whether it stopped suddenly or merely dwindled away does not appear, and it is to be remembered that Williams had been occupied in painting the portion of the hull immediately in front of him as the float was moved along. There is no ...

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